Citation Nr: 1335832 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 13-19 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than May 22, 2006, for the assignment of a total rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from November 1942 to December 1945. The record reflects entitlement to a TDIU due to service-connected disability was established by a July 2011 decision of the Board of Veterans' Appeals (Board). The present matter is before the Board on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which, in pertinent part, effectuated the establishment of TDIU from May 22, 2006. The Veteran appealed, contending entitlement to an earlier effective date. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The record does not reflect the Veteran had any claim(s) for VA benefits, to include entitlement to TDIU, that was received prior to May 22, 2006. 2. The record does not reflect it was factually ascertainable the Veteran was unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities prior to May 22, 2006. CONCLUSION OF LAW The criteria for an effective date earlier than May 22, 2006, for the establishment of a TDIU due to service-connected disability are not met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.340, 3.400, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Under the law, VA is required to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has indicated that VA must provide a claimant notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the appeal arises from the Veteran's disagreement with the effective date assigned for TDIU after entitlement to that benefit was established. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Nevertheless, the Board observes that the Veteran was sent notification regarding his underlying claim of entitlement to a TDIU via a June 2007 letter which, in pertinent part, informed him of what was necessary to substantiate a TDIU claim, the information and evidence used by VA to determine effective date(s), what information and evidence he must submit, and what information and evidence will be obtained by VA. As such, even if the duty to notify were applicable in this case, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate this claim and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice, or lack thereof. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his current earlier effective date claim, and nothing indicates the he has identified the existence of any relevant evidence that has not been obtained or requested. The Board acknowledges that the Veteran indicated he was in receipt of disability benefits from the Social Security Administration (SSA). However, the SSA responded in 2008 to a request for such records that these medical records had been destroyed. The Veteran has not indicated that a hearing is desired in conjunction with this appeal. Further, the Board notes that, as a general rule, the adjudication of a claim for an earlier effective date is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document(s) were either received by VA and/or promulgated to the Veteran in this case. Therefore, there is no reasonable possibility that any further development, such as an examination, would aid in the resolution of this appeal. Consequently, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case, to include the lay assertions of record. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). In general, the effective date for an increase will be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(1). For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(o)(2). In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under § 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). In VAOPGCPREC 12-98, VA's General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. The Court, in Hazan, noted that 38 U.S.C.A. § 5110(b)(2) required a review of all the evidence of record (not just evidence not previously considered) as to the disability in order to ascertain the earliest possible effective date. Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521. The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. 3.155. "Application" is not defined in the statute. However, in the regulations, "claim" and "application" are considered equivalent and are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The Federal Circuit, in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) define "claim," informal as well as formal, as a "communication in writing." Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to "an informal claim," it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a "communication in writing." The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication "indicat[e] an intent to apply for one or more benefits under the laws administered by the Department," and "identify the benefits sought." In this case, the Board notes that the Veteran specifically stated that he was seeking the assignment of a TDIU via a statement received in April 2007, which is subsequent to the current effective date in this case. However, he also submitted claims for higher ratings for his service-connected disabilities on May 22, 2006. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. As such, the increased rating claims received on May 22, 2006, would appear to also constitute a claim of entitlement to TDIU. In any event, the record does not reflect the Veteran had any claim(s) for VA benefits, to include entitlement to TDIU, that was received prior to May 22, 2006. For example, a February 1990 Board decision found the Veteran was not entitled to a compensable evaluation for his service-connected otitis media, but that he was entitled to a 10 percent rating for his service-connected hearing loss. A March 1990 rating decision effectuated that decision. Thereafter, a February 1995 rating decision assigned a 20 percent rating for the service-connected hearing loss, effective from December 12, 1994. Nothing in the record reflects the Veteran disagreed with this assigned rating or the effective date thereof. Subsequent records were submitted later in 1995 regarding the Veteran's marital status, and a direct deposit form was submitted in 1996, but he did not indicate he was seeking any other VA benefits such as increased ratings for his service-connected disabilities, service connection for other disabilities, or a TDIU. In fact, the record available for the Board's review does not indicate any communication was received from the Veteran during the period from 1996 until his increased rating claims were received on May 22, 2006. In view of the foregoing, the Board finds that there is no basis to award an earlier effective date in this case based upon an earlier date of claim. Therefore, the Board must review the record to determine whether it was factually ascertainable the Veteran was entitled to a TDIU prior to May 22, 2006, particularly during the one year period prior to the May 22, 2006, date of claim. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). The record reflects the Veteran is service connected for the following disabilities: bilateral hearing loss, evaluated as 10 percent disabling from May 1, 1989, 20 percent from December 12, 1994, and 60 percent from May 2, 2006; tinnitus with headaches, evaluated as 10 percent disabling from September 25, 1984, to April 19, 2007; tinnitus, evaluated as 10 percent disabling from April 20, 2007; headaches, evaluated as 10 percent disabling from April 20, 2007; tonsillitis, evaluated as noncompensable (zero percent) from April 1, 1946; dermatitis of scrotum, evaluated as noncompensable from April 1, 1946; and chronic otitis media, evaluated as noncompensable May 1, 1989. His overall combined rating was zero percent from April 1, 1946; 10 percent from September 25, 1985; 20 percent from May 1, 1989; 30 percent from December 12, 1994; 60 percent from May 22, 2006; and 70 percent from April 20, 2007. See 38 C.F.R. § 4.25. Therefore, the Veteran did not satisfy the schedular criteria for consideration of a TDIU prior to May 22, 2006. See 38 C.F.R. §§ 3.340, 4.16(a). Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16(a) , such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The record reflects that the Veteran completed high school, but denied any further education or training. He previously worked as a shop supervisor for the Horton Spring and Brake Company in Jacksonville, Florida, for nearly 21 years (June 1965 to January 1986), which he said he left because of his hearing. He also indicated that his job was more of a service manager and that he also dealt with security. In addition to his service-connected disabilities, the record shows that the Veteran has numerous non-service connected conditions, to include: chronic back pain with a history of lumbar nerve compression, coronary artery disease, hypertension, hyperlipidemia, colon polyp status post polypectomy, and carotid endarterectomy. In his February 1986 application for vocational rehabilitation the Veteran stated that hearing loss and nerve damage caused his hearing to become all scrambled together and that he was unable to use ear plugs properly or talk to a group of people without becoming confused. In an attached letter, he wrote that he had injured his back on the job, that he had been an auto and brake systems mechanic for 45 years, and that he was concerned he might not be able to work at this trade any longer. There is no indication in the record that the Veteran ever attended a counseling session or pursued this request for VA vocational rehabilitation benefits. Also in 1986, the Veteran filed a Notice of Disagreement and a VA Form 9, Substantive Appeal, both concerned with an earlier increased rating claim for his defective hearing disability. At that time the Veteran stated that his work status "has been lowered" because of his hearing difficulty. The Veteran did not explain what a lowered status meant. The record does not reflect the Veteran has been employed since 1986. As such, he was clearly not employed during the one year period prior to the May 22, 2006, date of claim. However, the Court has held that the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, supra. As detailed above, the Veteran has emphasized the difficulties he had performing his duties due to his hearing loss. However, there does not appear to be any audiological evaluation conducted on his hearing during the one year period prior to May 22, 2006. Therefore, while the Board does not dispute he had hearing difficulty during this period, there is nothing by which it was factually ascertainable that a rating in excess of 20 percent was warranted. Without such evidence, the Board must conclude that the severity of this disability was adequately reflected by the schedular rating in effect at that time. Although the Board does not dispute this disability caused problems with employment, to include by itself and in combination with the other service-connected disabilities, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." Moreover, the Court has noted that a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. Van Hoose, 4 Vet. App. at 363. The Board further notes that while the Veteran's service-connected disabilities, particularly his hearing loss, would make it difficult to communicate with others and perform duties as a supervisor, it does not appear from the record that they were of such severity prior to May 22, 2006, that it was factually ascertainable such difficulties could not be overcome with reasonable accommodation. Moreover, he reportedly had 45 years of experience as an auto and brake systems mechanic. The record does not reflect it was factually ascertainable prior to May 22, 2006, that his service-connected disabilities, either separately or together, would preclude him from carrying out such duties. Moreover, there is also evidence that the Veteran stopped working in 1986, at least in part, due to the impairment caused by his nonservice-connected back disorder. As already noted, the impairment caused by nonservice-connected disabilities is not for consideration in establishing entitlement to a TDIU. In view of the foregoing, the Board finds the record does not reflect it was factually ascertainable the Veteran was unable to obtain and/or maintain substantially gainful employment due to his service-connected disabilities prior to May 22, 2006. For these reasons, the Board concludes the Veteran has no legal basis for an effective date earlier than May 22, 2006, for the assignment of a TDIU. Therefore, the benefit sought on appeal must be denied. ORDER An effective date earlier than May 22, 2006, for the assignment of a TDIU due to service-connected disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs